BURRELL DEMOLITIONS LTD V THE WELLINGTON CITY COUNCIL AND THE WELLINGTON REGIONAL COUNCIL HC WN CIV 2010-485-2310

BURRELL DEMOLITIONS LTD V THE WELLINGTON CITY COUNCIL AND THE WELLINGTON REGIONAL COUNCIL HC WN CIV 2010-485-2310 17 May 2011IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2010-485-2310UNDER the Resource Management Act 1991BETWEEN BURRELL DEMOLITIONS LTDALEXANDER JAMES BURRELLAppellantsAND THE WELLINGTON CITY COUNCILAND THE WELLINGTON REGIONALCOUNCILRespondentsHearing: 2 May 2011Counsel: P A Morten for the AppellantsB J Lupton for the RespondentsJudgment: 17 May 2011JUDGMENT OF MALLON JIntroduction[1] Burrell Demolition was convicted of two charges under the Resource Management Act 1991 in relation to its landfill operations following a hearing in the District Court. Mr Burrell, a director of Burrell Demolition, was also convicted of two charges in respect of the same matters. Burrell Demolition and Mr Burrell have appealed to the High Court seeking orders quashing the convictions and dismissing the charges. Before me is an application for leave to adduce evidence at the appeal.Preliminary issue[2] There is a preliminary matter raised by Miller J in a minute dated 3 February 2011 concerning whether this is an appeal to which the High Court Rules apply. Theparties have taken the view that it is. For that reason the application has been made under r 20.16 of the High Court Rules. That rule provides that leave will only be granted if there are "special reasons" for hearing the evidence.[3] Rule 20.16 applies only if the appeal is made to this Court "under any enactment other than...the Summary Proceedings Act 1957." For this purpose"appeals under an enactment that incorporates provisions (whether modified or not) of the Summary Proceedings Act 1957 are not appeals under the Summary Proceedings Act 1957." In submitting that the High Court Rules apply, counsel have relied on commentary in McGechan which states:1Although Part 20 does not apply to appeals under the Summary Proceedings Act 1957, it will apply to appeals under enactments that incorporate the provisions of the Summary Proceedings Act 1957. Appeals under the Resource Management Act are therefore governed by Part 20.[4] I agree with the comment by Miller J in his minute that this commentary may be in error. The Resource Management Act creates the offences under which the appellants were convicted but does not confer a right of appeal in respect of those offences. That right is conferred by s 115 of the Summary Proceedings Act under which this appeal is brought.[5] This contrasts with the right of appeal to the High Court, on a question of law, in respect of a proceeding before the Environment Court. That right is conferred under the Resource Management Act s 299 of that Act. The Resource Management Act specifically provides that such an appeal must be made in accordance with the High Court Rules except in so far as it is inconsistent with the appeal provisions set out in the Act. That is an example of an appeal "under anyenactment other than... the Summary Proceedings Act" because the appeal right is conferred by an enactment other than the Summary Proceedings Act.[6] Therefore it seems to me at least arguable that s 119 of the Summary Proceedings Act, and not the High Court Rules, sets out the procedure for the appeal.Under s 119 the High Court has "full discretionary power to hear and receive further1 McGechan on Procedure (looseleaf ed, Brookers) at [20.1.01].evidence, if that further evidence could not in the circumstances have reasonably been adduced at the hearing".[7] In this case the point is academic because the result would be the same whether considered under s 119 of the Summary Proceedings Act or under r 20.16 of the High Court Rules (on which the parties advanced their submissions). That is because if the evidence could not reasonably have been adduced at the hearing and itis relevant evidence then I would regard that as a "special reason" under r 20.16.Relevant background[8] Burrell Demolition has been operating its landfill for many years. Since June 1995 it has done so pursuant to resource consents. On 22 June 2009 two charges were laid against Burrell Demolition. One charge alleged a contravention of s 15(2) of the Resource Management Act in respect of the discharge of waste material onto the land. The other alleged a contravention of s 9(1) of the Resource Management Act for operating the landfill in breach of a rule in the District Plan. These charges related to the height of waste material and the angle of batter slopes.[9] For present purposes the relevant issue is the height of waste material. The resource consents were subject to a condition providing that the operation:shall be as generally described in the Burrell Demolition Ltd Resource Consents Applications for a Cleanfill and Fourth Schedule Assessment (Assessment of Environmental Effects) as prepared for the consent holder by David Smith, Civil and Environmental Engineer, dated April 1994, together with its associated reports and appendices and evidence presented by the consent holder at the hearing...[10] The respondents (the informants in the District Court hearing) alleged, in particulars provided to Burrell Demolition, that there was a contravention becausewaste material was "above 150 m RL". RL means "reduced level" and refers to thefinished level above a datum level. An issue at the hearing in the District Court was whether the heights in the resource consent applications were with reference to adatum level of "mean sea level" or a local datum level on the site. Burrell Demolition contended the latter and that the local datum level was the access point atthe site. The District Court Judge rejected this, concluding that the datum level was mean sea level.[11] The other issue raised at the District Court hearing, which is relevant for present purposes, is whether the charges were brought in time. By s 338(4) of theResource Management Act, the informations were required to be laid "within 6months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consentauthority." The respondents submitted that they became aware of the contraventionwhen they received a final report on 23 December 2008. Burrell Demolition submitted that the respondents were aware or ought to have been aware of the contraventions by 22 August 2008 when information which was the subject of the December report was provided to the Council. The District Court agreed with therespondents' position.[12] On the appeal Burrell Demolition intends to submit that the Judge erred on both of these issues. It is said that some of the documents for which leave is sought would have been used when cross-examining the respondents' witnesses in relationto the datum level. The other documents for which leave is sought are said tosupport Burrell Demolition's contention that the respondents knew or ought to haveknown that waste had been deposited outside consent limits before 23 December 2009.RelevanceDocuments relating to datum level[13] The resource consent application refers to levels and RLs in a number of places. The only reference to a mean sea level seems to be the reference in paragraph 4.2.1 of the Assessment of Environmental Effects (refer [9] above) which refers to the highest point being on the site being at "495 metres above mean sea level". Where references were made to 150m RL (and other levels) it seems thatthere was no datum point specifically referred to. Further, the accompanying plans were not to scale, showed approximate levels and also showed no datum levels.[14] The Judge gave four reasons for finding that the datum level was mean sea level. One of the reasons was that paragraph 4.2.1 of the Assessment of Environmental Effects preceded the paragraphs which referred to a 150m RL. TheJudge's view was that these later paragraphs must logically also be referring to a level above sea level. (This was not a point that had been made by witnesses orcounsel at the hearing.) Another of the reasons was that "the only alternative datum(being local datum)" had been put to the respondents' witnesses and rejected by them"for the reasons they gave".[15] One of the documents Burrell Demolition says is relevant on the appeal is an email dated 27 August 2008 from the civil engineer who was advising the respondents on the issue of contravention. In that email, the engineer (Mr Haldane) is advising the regional council (Mr Faithfull) of enquiries he has made about the datum level. The email refers to Mr Haldane having spoken to a Mr Paterson whoindicated that the "Geodetic Datum 1949 is not a vertical datum – so that cannot bewhat was used for the consent." Mr Haldane further reported on Mr Paterson saying "he wasn't aware of any datum that would account for the discrepancies (consented versus surveyed) in fill levels that we're seeing at the Site". Mr Haldane went on to say that it "appears we have a few scenarios". He refers to three possibilities, one of which is that a "site datum/benchmark (arbitrarily set to 100m?) was used for theconsent levels". The email makes comments on comparisons between the 1994 plans and a topographic survey. The email concludes that the "key is getting better copies of the 1994 plans or confirmation of the datum". In response to this email, an internal Wellington Regional Council email of the same date suggested further linesof enquiry and commented that "Rob is pretty confident a datum was determined atthe time we took the enforcement action..." (which is apparently a reference to enforcement action taken in 1999 or 2000).[16] I accept that counsel for Burrell Demolition would have considered these emails relevant to the cross-examination of the respondents' witnesses. They showthat at this stage of the investigation it was not clear what the datum level was and that one possibility was that there was a site datum. They suggest that the respondents were not proceeding on the basis that the datum level was determined bythe reference to "mean sea level" in paragraph 4.2.1 of the Assessment ofEnvironment Effects (as the Judge concluded). The responses in cross-examinationwould be relevant to the Judge's assessment of the witnesses' reasons for rejecting alocal datum.[17] The respondents say that the additional documents the appellants seek to rely on would have had no material effect on the outcome of the case. They say that the issue was covered in detail at the hearing and that the above emails would not have advanced the argument further. That may be the case, but that is a question that is better assessed in the context of the substantive appeal. At this stage it is apparent that the documents were relevant to at least two of the reasons the Judge gave for finding that the datum was mean sea level.Time for laying informations[18] Most of the documents for which leave is sought relate to the issue of when the respondents knew or should have known of the contravention. In the District Court Burrell Demolition submitted that the informations were laid out of time on the basis of an email dated 22 August 2008. That was an email from Mr Haldane tothe Wellington Regional Council in which he enclosed surveyors' drawings and said:As you can see the batter slopes appear to be steeper than those consented. In addition, the levels are higher than those in the consent application. We need to confirm the datum before we can compare the levels, especially given the rather large difference between the consented and measured levels.[19] The District Court Judge rejected Burrell Demolition's submission on the basis of this email as "incredible and implausible". The Judge considered that theemail was expressing a preliminary view only. She concluded that it was not untilMr Haldane's final report was received by the respondents on 23 December 2008that they knew or should have known of the contraventions. The informations had been laid just inside 6 months from that date.[20] The documents for which leave is sought are the investigations which led to the final report received by 23 December 2008. Essentially they are said to show that the only outstanding information as at August 2008 was the datum level and that the information relied on to show that the datum level was mean sea level wasinformation dating back to 2000. Thereafter it is said that only further corroborating information was obtained. The documents are therefore said to show that the respondents knew or should have known that datum was mean sea level before 23 December 2008 and that therefore the respondents knew or should have know of the contraventions before that date.[21] The respondents say that these documents do not advance the argument for Burrell Demolition. Again I consider that this is better assessed in the context of the substantive appeal. At this stage it seems to me that they are relevant to BurrellDemolition's submission that the informations were not laid within 6 months of when the contraventions "should have become known" to the respondents.Reasonable diligence[22] By letter dated 3 September 2009 Burrell Demolition requested "fulldisclosure of all relevant documents...pursuant to the relevant provisions of theCriminal Disclosure Act 2008." The respondents replied on 1 October 2009enclosing documents and stating:Please note that correspondence between council officers has been withheld on the basis that it falls within the exceptions set out in s 16(1)(c) of the Act... We are happy to provide you with a list of the withheld correspondence, should you wish.[23] No further request was made on behalf of Burrell Demolition before thehearing. However, in the course of Mr Haldane's evidence, reference was made todocuments which counsel for Burrell Demolition had not seen. This led to theWellington Regional Council's counsel obtaining a file of documents from theCouncil over the lunch adjournment for counsel for Burrell Demolition to review. From this file counsel for Burrell Demolition identified at least one relevant document which was put to Mr Haldane in cross-examination.[24] After the hearing Burrell Demolition referred to what had occurred and requested a copy of all documents relating to the two matters which are in issue on this appeal. The respondents provided those documents although also noted theirposition that their disclosure obligations had been complied with and no challenge to that disclosure or additional documents had been sought before the hearing. It is common ground that the documents provided at this time were more extensive than the documents provided over the lunch adjournment (the respondents were not able to locate everything in the short period they had to do so).[25] I agree that, prior to the District Court hearing, Burrell Demolition ought to have made a more specific request for documents on the two matters now in issue. Had they done so, it seems likely that the documents would have been supplied (as there is no reason why a different approach would have been taken at that time by the respondents, than the approach taken when the specific request was made after the hearing). However, the events at the hearing must also be considered. Counsel for Burrell Demolition was alerted when Mr Haldane referred to something which counsel did not have. At this point the relevance of these documents was squarely raised. The documents then supplied were not complete and counsel had only the lunch adjournment to look at them. An adjournment could have been sought but the issue arose at a time when decisions needed to be made quickly. The documents on which counsel now seek to rely in this appeal do not raise altogether new issues (such that the appellants are not seeking to run a different case on the appeal) and are not particularly extensive.[26] Overall I consider that interests of justice are better served if all the documents relied on by Burrell Demolition, which it did not have at the District Court hearing and which were in the possession and control of the respondents, are before the Court on the appeal.Result[27] I consider the documents for which leave was sought under r 20.16 should be admitted at the appeal pursuant to the discretion under s 119(3) of the Summary Proceedings Act. Alternatively I consider there are special reasons for granting leave under r 20.16[28] The appellants also seek leave to amend their appeal to include as a ground that there was an abuse of process because of the non-disclosure of the documents. Other than that such amendment will involve further work for the respondents, the respondents do not assert any prejudice if the amendment is made. If such further work means that the respondents need an adjournment of the appeal, they can seek that. In the absence of prejudice, I consider that it is in the interests of justice to permit the amendment, and I order accordingly.Mallon J